STATE OF KERALA Vs. UNNI

JUDGEMENT

(1.) RESPONDENTS in O.P. No. 25783/2002 are the appellants. The learned Single Judge before whom the case came up for hearing quashed Ext.P2 challenged in the Original Petition holding that the writ petitioners were not liable to be prosecuted for any offence punishable either under Section 56(b) or under Section 57(a) of the Kerala Abkari Act (for short, 'the Act') - It was also declared that Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 introduced on 1.4.2002 fixing the strength of ethyl alcohol in toddy drawn from coconut palms as 8.1% v/v was arbitrary and unreasonable and hence illegal and unenforceable. Aggrieved, the State of Kerala and the Excise Authorities have filed this Writ Appeal. It is brought to our notice that the judgment of the learned Single Judge in a connected case, Unni v. State of Kerala, involving identical issues, has been reported in 2003 (3) KLT 306.

(2.) IT is pointed out before us that Rule 9(2) of the Kerala Abkari Shops (Disposal in Auction) Rules, 2002 (here -in -after referred to as 'the Rules') finds a place in the Rules introduced on 1.4.2002, and prior to that, the said Rule was numbered as Rule 8(2) and still prior to that date, it was numbered as Rule 7(2) of the Abkari Shops (Disposal in Auction) Rules, 1974. The excise authorities registered cases against the petitioners, who are licensees under the Act, for offences punishable under Section 56(b), Section 57(a) and Rule 9(2) of the aforesaid Rules. The allegation was that, toddy kept for sale in Toddy Shop No. 5 belonging to the writ petitioners, on chemical analysis, was found to contain more than 8.1% of alcohol. The first petitioner is the employee and the second petitioner is the licensee of Toddy Shop No. 5 in Thiruvananthapuram Excise Range.

(3.) THE learned Single Judge, relying on the provisions contained in the Excise Manual, particularly para.6(a) of Chapter V of Volume -II and para.4, 5 and 6 of Chapter X of the Manual, found that the percentage of ethyl alcohol in toddy may go above 8.1% by natural causes and therefore, the prescription that, no toddy which contains ethyl alcohol over 8.1 % shall not be offered for sale is an unworkable provision and therefore, cannot be sustained in law. Paragraph 6(a) of the Excise Manual, which speaks about fermented liquors says that toddy, beer, wines etc., come under the category of fermented liquors and that the maximum self -generated alcohol content that will be present in a fermented liquor, which is not fortified is only 12% per volume. Excise Manual further says that when alcohol reaches the above percentage of volume, the yeast responsible for the fermentation is destroyed by its own bye -product and no further alcohol formation is possible. Paragraphs 4, 5 and 6 of Chapter X of the Volume -II of the Excise Manual were relied on to come to the conclusion that toddy yield from each kind of tree and the alcoholic strength of toddy varies according to the season of the year, the time during which it is drawn and other attendant circumstances. Paragraph 5 says that at the peak point of fermentation, the average alcoholic strength of fermented toddy so far as toddy taken from coconut is concerned would be 8.1% per volume.